How Trump can get the citizenship question rolling

Article author: 
Mark Krikorian
Article publisher: 
The Hill
Article date: 
August 25, 2019
Article category: 
Our American Future
High
Article Body: 

President Trump recently revived the debate over whether anyone born on U.S. soil should automatically be classified as a U.S. citizen. He said to a gaggle of reporters outside the White House: “We're looking at that very seriously, birthright citizenship, where you have a baby on our land, you walk over the border, have a baby – congratulations, the baby is now a U.S. citizen. ... It's frankly ridiculous.”...

Our current practice is that anyone born here – even to illegal aliens or tourists or foreign students or guest workers – is a citizen. More than 200,000 such children are born here every year. They enjoy what one book calls “Citizenship Without Consent.”

No law or Supreme Court ruling requires this. Instead, the practice stems from an interpretation of the 14th Amendment. The relevant part of that amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The point of the post-Civil War amendment was to prevent the former Confederate states from stripping the citizenship of the newly freed slaves.

This seems straightforward, but is not. The slavery issue is gone, but new issues have arisen. Specifically, what does “subject to the jurisdiction” actually mean?...

Here's where the president has an opportunity. He cannot issue an executive order declaring an end to birthright citizenship and decree that only children born to citizens and permanent residents (green card holders) are henceforth to be considered U.S. citizens — that's simply not in power of the chief executive...

The way that could work would be to instruct the Department of State and the Social Security Administration not to issue passports or Social Security numbers to babies born after a certain date in the future unless at least one parent is a citizen or green-card-holder.

A lawsuit, perhaps from one of the thousands of Russian and Chinese “birth tourists,” would be filed, a judge would be found to issue an injunction, and the case would ultimately have to be decided by the Supreme Court. This would also happen if Congress were to pass legislation laying out the parameters of citizenship, but since Congress can't even pass a budget, that's not going to happen....

As law professor Jonathan Turley wrote when the president raised the subject of a birthright citizenship executive order last fall, “the benefit of the order is that it could finally force the courts to resolve this question with clarity and finality.”...

The obvious compromise: Confer citizenship at birth only to babies born to citizens or green-card holders, but with a kind of statute of limitations, awarding citizenship to others if they manage to stay here for a number of years. Australia had a policy like ours until 1986, when it ended birthright citizenship...

 

Mark Krikorian is executive director of the Center for Immigration Studies.